The public service principle
Let us first consider the principle that public officials should act in the service and interests of the public and not, for instance, in the interests of their kin, family, friends, religious bodies, parties and others with whom they have connections; nor
2011 over the activities of his unofficial adviser Adam Werrity including his attendance at many of the Secretary of State’s official engagements without security clearance; and the resignation on 21 January 2011 of Andy Coulson, the Prime Minister’s Director of Communications, over suspicions that he had been involved in phone hacking when he was editor of the News of the World newspaper.
7 Section D of this chapter, ‘Wrong kinds of accountability’ discusses this issue. should they act against the interests of, for example, women, children, or racial, religious, or ethnic minorities, or dissidents, on the basis of irrational stereotypes or personal animosity.[1040]
1. Public service and soft law
The public service principle has come to be broadly recognized in the hard and soft law of the UK since at least the nineteenth century. It was given institutional expression in the Northcote—Trevelyan Reforms to the civil service in 1854[1041] which provided for a permanent, professional civil service, appointed on merit and not as a matter of patronage. The principle is nowadays expressed in many soft law sources: I have already noted the Seven Principles of Public Life which were elaborated by the Committee on Standards in Public Life in its first Report in 1995[1042]; these are now incorporated in the Ministerial Code[1043], Ministers’ and Special Advisers' Codes of Conduct[1044], the Civil Service Code[1045], the Codes of Conduct for Members of Parliament[1046] and for Peers[1047], Local Government Codes of Conduct[1048], and many other codes which regulate the conduct of public bodies, including special advisers, so as to articulate and promote the public service principle.
Though not ‘hard law’ in the sense ofbeing judicially enforceable, these requirements are ‘enforced’ in a range of ways. They are commonly obeyed. The Prime Minister is responsible to Parliament for his operation of the Ministerial Code: it is for him or her to respond to claims that the Code has not been obeyed, and to require a minister who has breached the provisions to resign. The two Houses of Parliament each have their own enforcement mechanisms, operating through the House of Commons Standards and Privileges Committee[1049] and the Parliamentary Commissioner for Standards[1050] [1051], and the House of Lords Privileges Committee. The Parliamentary Ombudsman’s Principles of Good Administration1 set out six standards for public bodies: getting it right; being customer-focused; being open and accountable; acting fairly and proportionately; putting things right; and seeking continuous improvement. These are informally enforced by the ombudsman and the Public Administration Select Committee to which he or she is accountable, and which exercises political pressure on departments to comply with the ombudsman’s reports and findings. The public service principle is also expressed in some of the decisions of the Committee of Standards and Privileges of the House of Commons and the Committee of Privileges of the House of Lords, and parliamentary resolutions[1052], in particular the principle that MPs should not be harassed[1053] or mandated by outside bodies such as trade unions or sponsors[1054], and that the offering or taking of bribes to or by a member of either House is a serious contempt of Parliament.[1055] 2. Statutory provisions on public service Many hard law responses—both in Acts of Parliament and in case law—to breaches of the public service principle are targeted at ensuring that the public service values prevail against incompatible pressures. This is done by a combination of statements of the principle and provisions for institutionalized responses to its breach. • The Constitutional Reform and Governance Act 2010 provides by section 7 that the civil service code that is to be published under section 5 ‘must require civil servants to carry out their duties (a) with integrity and honesty, and (b) with objectivity and impartiality’; section 9 establishes complaints procedures when a civil servant may have been required to act in breach of the code or has acted in breach; section 10 provides that appointments to the civil service shall be on merit. These provisions were included in part in response to concerns that ministers may seek to use the services of civil servants for party political purpose, and that there were insufficient channels for civil servants to complain of ministers’ misuse of their services. • The Bribery Act 2010 criminalises the performance of a function of a public nature if it is done in breach of an expectation that it will be exercised in good faith, impartially or if the person is in a position of trust.[1056] This Act was passed in response to concerns, in particular, about private companies offering bribes for contracts. • The Parliamentary Standards Act 2009 as amended by the Parliamentary Voting System and Constituencies Act 2011 section 30 removes the regulation and administration of MPs' expenses arrangements from the House of Commons and puts them on a formal legal basis with provision by section 10 for the prosecution of Members who make false claims for expenses. This Act was passed in response to the MPs expenses scandal in 2008—09. 3. The courts on public service A number of cases illustrate how the public service principle is treated by the courts. In Amalgamated Society of Railway Servants v Osborne[1057] one of the issues was the effects of assertions by unions or political parties within or outside Parliament of a right to mandate Labour MPs, to limit their freedom to vote as they thought right and to punish them for failing to comply with the demands of their ‘mandators'. In R (on the application of Corner House Research and others) v Director ofthe Serious Fraud Office23 the question was whether it had been unlawful for the Director of the Serious Fraud Office to discontinue a criminal investigation into alleged bribery involving Saudi Arabia. Baroness Hale indicated how accountability to the courts operates in such a case: It is common ground that it would not have been lawful for [the Director ofthe Serious Fraud Office] to take account of threats of harm to himself, threats of the ‘we know where you live' variety. That sort of threat would have been an irrelevant consideration. So what makes this sort of threat different? Why should the Director be obliged to ignore threats to his own personal safety (and presumably that of his family) but [be]entitled to take into account threats to the safety of others? The answer must lie in a distinction between the personal and the public interest. The ‘public interest' is often invoked but not susceptible of precise definition. But it must mean something of importance to the public as a whole rather than just to a private individual.[1061] There have been a number of cases about the public service duties of local authorities and the legality of decisions in which members have felt themselves bound by decisions of their local party organizations, or have felt entitled to give effect to their own moral or ideological views without pinning them to their understanding of where the public interest lies. The case best known for dealing with this issue is Bromley London Borough Council v Greater London Council. [1063] The decision was strongly criticized[1064] for the failure of the House of Lords to appreciate the realities of transport policy, and for holding that the council owed fiduciary duties to its ratepayers. But a major issue was whether and to what extent the elected Labour party members of the council were bound by the policy of the London Labour Party. Lord Diplock maintained that the elected members of the council had ‘a collective legal duty to make choices of policy and of action that they believe to be in the best interests (weighing, where necessary, one against the other) of all those categories of persons to whom their collective duty is owed'; and that ‘A council member once elected is not the delegate of those who voted in his favour only; he is representative of all the electors'.[1065] [1066] Issues as to the treatment of party policies arose in a number of cases, most of them in the 1980s when local authorities were more politicized than they are nowadays. In R v Amber Valley District Council, exp Jackson33 the council had contracted with a company to manage a proposed development and was obliged by the contract to use its best endeavours to obtain the necessary planning permissions, failure to do so resulting in liability in damages. The local group of the party having political control of the council resolved to support the company's planning application. In R v Waltham Forest London Borough Council, exp Baxter and others[1067] the members of the majority group on the council had met before the meeting to determine the rate. The standing orders of the group required members to refrain from voting in opposition to the decisions of the group on pain of withdrawal of the party whip. A number of ratepayers applied for judicial review of the council’s rate decision on the basis that members of the majority group had voted in favour of the new rate, despite the fact that at the time of the earlier meeting they had opposed it. It was held that these matters were not evidence that the councillors’ discretion had been fettered; party loyalty or party policy were relevant considerations for the councillors as long as they did not dominate; that the evidence showed that the councillors who had initially opposed the decision had voted after making their own minds up; and that their freedom to vote as they thought fit had not been fettered. The case illustrates the fine balance that politicians are expected to make between party loyalty—accountability to the party group—and their own inclinations. The point for us again is that the decision upholds the principle against mandate or interference with the freedom to exercise individual judgement in line with the public service principle. In R v Somerset County Council, exp Fewings[1068] the council owned land to which the local hunt wished to have access. The council resolved to ban hunting on its land as an exercise of its ownership rights on the basis that these were not different from the ownership rights of private bodies. Members of the hunt applied for judicial review on the basis that the ban had been made on purely moral grounds and without reference to the statutory duty of the council to act for the benefit of the area—a local version of the public service and public interest principles. By a majority, Sir Thomas Bingham MR and Swinton Thomas LJ, the Court of Appeal held that the council ought to have considered expressly its duties to promote the benefit of the area and that, having failed to do so, its decision was unlawful. One judge, Simon Brown LJ, was prepared to give the council the benefit of the doubt and to assume that it had indeed taken its duty to the public interest into account, although it had not said so. An important point in the decision is that public bodies do not have the same freedoms of action as private bodies; they are not entitled to impose their moral principles on others without consideration of their public service duty.[1069] [1070] In the fourth of this series of cases, Porter v Magill"'", it was held that the selling of council-owned flats to Conservative supporters in the City of Westminster in order to increase the Conservative vote there—on the assumption that owner-occupiers were more likely than tenants to vote Conservative—was unlawful. In effect, pursuit of party interests was contrary to the public service principle. In Padfield v Minister of Agriculture[1071] it was held that for a minister to seek to avoid personal political embarrassment by refusing to exercise a statutory power to refer an issue to a committee would be unlawful: protection of personal interests at the expense of the public interest is not permitted. 4. Social controls Of course, the fact that the public service principle has been articulated in soft law, in Acts of Parliament, and in judicial decisions in these ways illustrates the fact that public bodies and politicians, like all humans, are capable of the opposite: partisan, selfish, nepotistic, or untrustworthy action.[1072] So, the public service principle is also underpinned by—in fact I suggest that it reflects general awareness of the existence of—non-legal, social controls. Breach of the Seven Principles of Public Life, even before they were elaborated, resulted in ostracism, anger and shaming of the miscreant who had accepted payment for tabling parliamentary questions[1073] by the public, the press and opposition parties. This also demonstrates the existence among the general population of senses that they share interests which public bodies should be promoting, a topic discussed in the next section of this chapter on the public interest principle. The public as accountees can be an effective check on breaches of these principles. Breaches of the public service principle may lead to disciplinary action. A minister may be dismissed or demoted by the Prime Minister for breach of the Ministerial Code; civil servants may be disciplined by their line managers or ministers for breach of the Civil Service Code. Thus breaches of the public service principle are dealt with by a web of accountability mechanisms, not by any means all of them of a formal nature. Many of the legal provisions for dealing with breaches of the public service principle came into effect as a result of prior social concerns about their importance and demands for them to be formally upheld, as with the establishment of the Independent Parliamentary Standards Authority after the MPs' expenses scandal.[1074] In summary, the public service principle as embodied in soft law, in formal legal requirements, and in social norms entails that public bodies and officials should not act selfishly or in the interests of their own careers or families or political parties to the exclusion of public interests; nor should they indulge their own whims, moral or other, or otherwise act arbitrarily or irrationally. The articulation of these principles has the effect of creating or strengthening accountability mechanisms of various kinds in order to ensure that the principles are adhered to, for example by publishing standards which had previously lacked authoritative texts, by making provision for supervisory mechanisms in local government[1075], for the investigation of complaints about conduct in the House of Commons by the Parliamentary Commissioner for Standards[1076], and for civil servants to raise concerns about ministerial misuse of civil service resources with their line managers and ultimately the Civil Service Commission.[1077] These will be considered in due course below. Many of the articulations of this principle that are summarized in the following paragraphs illustrate the point: they have arisen because of instances of breaches of the previously unarticulated or unsure principles—for instance, the exercise of patronage in the appointment of civil servants leading to incompetence in public administration resulted in the Northcote-Trevelyan reforms of 1854; attempts by sponsoring trade unions to punish MPs for failing to vote as instructed by them resulted in resolutions setting out the limits of relationships between MPs and outside bodies;[1078] cases of ‘sleaze’ among MPs who accepted payments for asking parliamentary questions resulted in appointment of the Commissioner for Parliamentary Standards and the tightening of rules relating to interests;[1079] abuses of MPs’ expenses resulted in the appointment of the Independent Parliamentary Standards Authority and the transfer of responsibility for the administration of the expenses system from the House of Commons to the Authority.48 Thus each of these ‘breaches’ gave rise to public concern. That fact is itself interesting in that it illustrates the connections between the public’s expectations of government and the need for governmental responses when public concern is manifest. The public service principle is underpinned, not only by formal and informal punishments for its breach, but also by socially valuable rewards for its observance. Many rewards and punishments operate informally, not in justiciable ways. If a person has given public service, and if those with honours to bestow believe that the service to the public has not yet been sufficiently rewarded, then an honour may be awarded: Knighthoods, CBEs, OBEs and MBEs, some peerages (eg. for independents), are rewards for public service.[1080] The honoured person is thus rewarded, in a politically neutral, merit-based (not patronage based) process[1081] with visible and titular tokens. According to researchers in the fields of social and evolutionary biology and psychology, these rewards may give rise to heightened social status, which in turn generates trust on the part of the others with whom s/he deals, and their cooperation. This brings benefits to the individual—who may continue to provide public service—as well as to society at large.[1082] These examples illustrate the significance of the attitudes of the general public and of politicians and others who are expected to serve the public interest, in the operation of the public service principle. In fact, many countries have public honours systems. In the UK, an effort has been made in recent years to involve the public in making nominations (perhaps reflecting the idea that honours are for public service) and scrutiny machinery has been created to help ensure that nominations for honours are appropriate.[1083] C.